Sec. 134. THE great end of
men's entering into society, being the enjoyment of their properties in peace
and safety, and the great instrument and means of that being the laws
established in that society; the first and fundamental positive law of all
commonwealths is the establishing of the legislative power; as the first and
fundamental natural law, which is to govern even the legislative itself, is the
preservation of the society, and (as far as will consist with the public good)
of every person in it. This legislative is not only the supreme power of the
common-wealth, but sacred and unalterable in the hands where the community have
once placed it; nor can any edict of any body else, in what form soever
conceived, or by what power soever backed, have the force and obligation of a
law, which has not its sanction from that legislative which the public has
chosen and appointed: for without this the law could not have that, which is
absolutely necessary to its being a law,* the consent of the society, over whom
no body can have a power to make laws, but by their own consent, and by
authority received from them; and therefore all the obedience, which by the
most solemn ties any one can be obliged to pay, ultimately terminates in this
supreme power, and is directed by those laws which it enacts: nor can any oaths
to any foreign power whatsoever, or any domestic subordinate power, discharge
any member of the society from his obedience to the legislative, acting
pursuant to their trust; nor oblige him to any obedience contrary to the laws
so enacted, or farther than they do allow; it being ridiculous to imagine one
can be tied ultimately to obey any power in the society, which is not the
supreme.

(* The lawful power of making laws to command whole politic societies of
men, belonging so properly unto the same intire societies, that for any prince
or potentate of what kind soever upon earth, to exercise the same of himself,
and not by express commission immediately and personally received from God, or
else by authority derived at the first from their consent, upon whose persons
they impose laws, it is no better than mere tyranny. Laws they are not
therefore which public approbation hath not made so. Hooker's Eccl. Pol. l. i.
sect. 10. Of this point therefore we are to note, that sith men naturally have
no full and perfect power to command whole politic multitudes of men, therefore
utterly without our consent, we could in such sort be at no man's commandment
living. And to be commanded we do consent, when that society, whereof we be a
part, hath at any time before consented, without revoking the same after by the
like universal agreement.

Laws therefore human, of what kind so ever, are available by consent. Ibid.)

Sec. 135. Though the legislative, whether placed in one or more, whether it
be always in being, or only by intervals, though it be the supreme power in
every common-wealth; yet,

First, It is not, nor can possibly be absolutely arbitrary over the lives
and fortunes of the people: for it being but the joint power of every member of
the society given up to that person, or assembly, which is legislator; it can
be no more than those persons had in a state of nature before they entered into
society, and gave up to the community: for no body can transfer to another more
power than he has in himself; and no body has an absolute arbitrary power over
himself, or over any other, to destroy his own life, or take away the life or
property of another. A man, as has been proved, cannot subject himself to the
arbitrary power of another; and having in the state of nature no arbitrary
power over the life, liberty, or possession of another, but only so much as the
law of nature gave him for the preservation of himself, and the rest of
mankind; this is all he doth, or can give up to the common-wealth, and by it
to the legislative power, so that the legislative can have no more than this.
Their power, in the utmost bounds of it, is limited to the public good of the
society. It is a power, that hath no other end but preservation, and therefore
can never* have a right to destroy, enslave, or designedly to impoverish the
subjects. The obligations of the law of nature cease not in society, but only
in many cases are drawn closer, and have by human laws known penalties annexed
to them, to inforce their observation. Thus the law of nature stands as an
eternal rule to all men, legislators as well as others. The rules that they
make for other men's actions, must, as well as their own and other men's
actions, be conformable to the law of nature, i.e. to the will of God, of which
that is a declaration, and the fundamental law of nature being the preservation
of mankind, no human sanction can be good, or valid against it.

(* Two foundations there are which bear up public societies; the one a
natural inclination, whereby all men desire sociable life and fellowship; the
other an order, expresly or secretly agreed upon, touching the manner of their
union in living together: the latter is that which we call the law of a
commonweal, the very soul of a politic body, the parts whereof are by law
animated, held together, and set on work in such actions as the common good
requireth. Laws politic, ordained for external order and regiment amongst men,
are never framed as they should be, unless presuming the will of man to be
inwardly obstinate, rebellious, and averse from all obedience to the sacred
laws of his nature; in a word, unless presuming man to be, in regard of his
depraved mind, little better than a wild beast, they do accordingly provide,
notwithstanding, so to frame his outward actions, that they be no hindrance
unto the common good, for which societies are instituted. Unless they do this,
they are not perfect. Hooker's Eccl. Pol. l. i. sect. 10.)

Sec. 136. Secondly,* The legislative, or supreme authority, cannot assume to
its self a power to rule by extemporary arbitrary decrees, but is bound to
dispense justice, and decide the rights of the subject by promulgated standing
laws, and known authorized judges: for the law of nature being unwritten, and
so no where to be found but in the minds of men, they who through passion or
interest shall miscite, or misapply it, cannot so easily be convinced of their
mistake where there is no established judge: and so it serves not, as it ought,
to determine the rights, and fence the properties of those that live under it,
especially where every one is judge, interpreter, and executioner of it too,
and that in his own case: and he that has right on his side, having ordinarily
but his own single strength, hath not force enough to defend himself from
injuries, or to punish delinquents. To avoid these inconveniences, which
disorder men's propperties in the state of nature, men unite into societies,
that they may have the united strength of the whole society to secure and
defend their properties, and may have standing rules to bound it, by which
every one may know what is his. To this end it is that men give up all their
natural power to the society which they enter into, and the community put the
legislative power into such hands as they think fit, with this trust, that they
shall be governed by declared laws, or else their peace, quiet, and property
will still be at the same uncertainty, as it was in the state of nature.

(* Human laws are measures in respect of men whose actions they must direct,
howbeit such measures they are as have also their higher rules to be measured
by, which rules are two, the law of God, and the law of nature; so that laws
human must be made according to the general laws of nature, and without
contradiction to any positive law of scripture, otherwise they are ill made.
Hooker's Eccl. Pol. l. iii. sect. 9.

Sec. 137. Absolute arbitrary power, or governing without settled standing
laws, can neither of them consist with the ends of society and government,
which men would not quit the freedom of the state of nature for, and tie
themselves up under, were it not to preserve their lives, liberties and
fortunes, and by stated rules of right and property to secure their peace and
quiet. It cannot be supposed that they should intend, had they a power so to
do, to give to any one, or more, an absolute arbitrary power over their persons
and estates, and put a force into the magistrate's hand to execute his
unlimited will arbitrarily upon them. This were to put themselves into a worse
condition than the state of nature, wherein they had a liberty to defend their
right against the injuries of others, and were upon equal terms of force to
maintain it, whether invaded by a single man, or many in combination. Whereas
by supposing they have given up themselves to the absolute arbitrary power and
will of a legislator, they have disarmed themselves, and armed him, to make a
prey of them when he pleases; he being in a much worse condition, who is
exposed to the arbitrary power of one man, who has the command of 100,000, than
he that is exposed to the arbitrary power of 100,000 single men; no body being
secure, that his will, who has such a command, is better than that of other
men, though his force be 100,000 times stronger. And therefore, whatever form
the common-wealth is under, the ruling power ought to govern by declared and
received laws, and not by extemporary dictates and undetermined resolutions:
for then mankind will be in a far worse condition than in the state of nature,
if they shall have armed one, or a few men with the joint power of a multitude,
to force them to obey at pleasure the exorbitant and unlimited decrees of their
sudden thoughts, or unrestrained, and till that moment unknown wills, without
having any measures set down which may guide and justify their actions: for all
the power the government has, being only for the good of the society, as it
ought not to be arbitrary and at pleasure, so it ought to be exercised by
established and promulgated laws; that both the people may know their duty, and
be safe and secure within the limits of the law; and the rulers too kept within
their bounds, and not be tempted, by the power they have in their hands, to
employ it to such purposes, and by such measures, as they would not have known,
and own not willingly.

Sec. 138. Thirdly, The supreme power cannot take from any man any part of
his property without his own consent: for the preservation of property being
the end of government, and that for which men enter into society, it
necessarily supposes and requires, that the people should have property,
without which they must be supposed to lose that, by entering into society,
which was the end for which they entered into it; too gross an absurdity for
any man to own. Men therefore in society having property, they have such a
right to the goods, which by the law of the community are their's, that no body
hath a right to take their substance or any part of it from them, without their
own consent: without this they have no property at all; for I have truly no
property in that, which another can by right take from me, when he pleases,
against my consent. Hence it is a mistake to think, that the supreme or
legislative power of any commonwealth, can do what it will, and dispose of the
estates of the subject arbitrarily, or take any part of them at pleasure. This
is not much to be feared in governments where the legislative consists, wholly
or in part, in assemblies which are variable, whose members, upon the
dissolution of the assembly, are subjects under the common laws of their
country, equally with the rest. But in governments, where the legislative is in
one lasting assembly always in being, or in one man, as in absolute monarchies,
there is danger still, that they will think themselves to have a distinct
interest from the rest of the community; and so will be apt to increase their
own riches and power, by taking what they think fit from the people: for a
man's property is not at all secure, tho' there be good and equitable laws to
set the bounds of it between him and his fellow subjects, if he who commands
those subjects have power to take from any private man, what part he pleases of
his property, and use and dispose of it as he thinks good.

Sec. 139. But government, into whatsoever hands it is put, being, as I have
before shewed, intrusted with this condition, and for this end, that men might
have and secure their properties; the prince, or senate, however it may have
power to make laws, for the regulating of property between the subjects one
amongst another, yet can never have a power to take to themselves the whole, or
any part of the subjects property, without their own consent: for this would be
in effect to leave them no property at all. And to let us see, that even
absolute power, where it is necessary, is not arbitrary by being absolute, but
is still limited by that reason, and confined to those ends, which required it
in some cases to be absolute, we need look no farther than the common practice
of martial discipline: for the preservation of the army, and in it of the whole
common-wealth, requires an absolute obedience to the command of every superior
officer, and it is justly death to disobey or dispute the most dangerous or
unreasonable of them; but yet we see, that neither the serjeant, that could
command a soldier to march up to the mouth of a cannon, or stand in a breach,
where he is almost sure to perish, can command that soldier to give him one
penny of his money; nor the general, that can condemn him to death for
deserting his post, or for not obeying the most desperate orders, can yet, with
all his absolute power of life and death, dispose of one farthing of that
soldier's estate, or seize one jot of his goods; whom yet he can command any
thing, and hang for the least disobedience; because such a blind obedience is
necessary to that end, for which the commander has his power, viz. the
preservation of the rest; but the disposing of his goods has nothing to do with
it.

Sec. 140. It is true, governments cannot be supported without great charge,
and it is fit every one who enjoys his share of the protection, should pay out
of his estate his proportion for the maintenance of it. But still it must be
with his own consent, i.e. the consent of the majority, giving it either by
themselves, or their representatives chosen by them: for if any one shall claim
a power to lay and levy taxes on the people, by his own authority, and without
such consent of the people, he thereby invades the fundamental law of property,
and subverts the end of government: for what property have I in that, which
another may by right take, when he pleases, to himself?

Sec. 141. Fourthly, The legislative cannot transfer the power of making laws
to any other hands: for it being but a delegated power from the people, they
who have it cannot pass it over to others. The people alone can appoint the
form of the common-wealth, which is by constituting the legislative, and
appointing in whose hands that shall be. And when the people have said, We will
submit to rules, and be governed by laws made by such men, and in such forms,
no body else can say other men shall make laws for them; nor can the people be
bound by any laws, but such as are enacted by those whom they have chosen, and
authorized to make laws for them. The power of the legislative, being derived
from the people by a positive voluntary grant and institution, can be no other
than what that positive grant conveyed, which being only to make laws, and not
to make legislators, the legislative can have no power to transfer their
authority of making laws, and place it in other hands.

Sec. 142. These are the bounds which the trust, that is put in them by the
society, and the law of God and nature, have set to the legislative power of
every common-wealth, in all forms of government.

First, They are to govern by promulgated established laws, not to be varied
in particular cases, but to have one rule for rich and poor, for the favourite
at court, and the country man at plough.

Secondly, These laws also ought to be designed for no other end ultimately,
but the good of the people.

Thirdly, They must not raise taxes on the property of the people, without
the consent of the people, given by themselves, or their deputies. And this
properly concerns only such governments where the legislative is always in
being, or at least where the people have not reserved any part of the
legislative to deputies, to be from time to time chosen by themselves.

Fourthly, The legislative neither must nor can transfer the power of making
laws to any body else, or place it any where, but where the people have.